Although Hallaq has shown convincingly
that, contrary to the common perception of many Western scholars, the gates of
ijtihād were never closed as such in the medieval Sunni schools,
the fact remains that the notion of closure remains entrenched amongst the
Muslim ‘ulamā as well as the general populace. This constitutes one of the
greatest impediments to any scholar outside the folds of the traditionalist
religious cliques to proffer new hermeneutics or methodology or even a single
opinion in substantive law.
Whereas it is reasonable that an enterprise such as ijtihād be undertaken by one
who possesses a reasonable degree of competence for it, there is no textual
evidence to suggest that the ijtihād of a competent scholar (as Abū Hanīfah
[81 - 150 / 700 - 767] or Mālik ibn Anas [94 - 179 / 716 - 795] or others) or even that of a
whole school or of all the traditional schools is infallible.
In Sunni jurisprudence, the notion that the ijmā‘ of the community and its
scholars in matters pertaining to interpretation and ijtihād has epistemological
certitude in religion, and thus, by implication, an authority equivalent to that
of the Qur’ān and the sunnah is quite shaky.
When this notion of consensus first gained religious character in the
second/eighth century, the proponents of the idea, with an essentially
deontological epistemology, had to look to the Qur’ān and hadīth for textual
evidence that would accord ijmā‘ the epistemological value they claimed for it.
As it happened, few of the verses adduced were relevant,
nor was there any real consensus on the interpretation of these verses. For
instance, Q.4:115, which, according to Hallaq, is one of the most relevant
verses, is open to various interpretations.
The idea of consensus here is based on an interpretation of the words wa yatabi‘
ghayr sabīl al-mu’minīn (and those who follow ways other than those of the
believers). Apart from the fact that these words have been interpreted in
different ways by the earliest exegetes, it is plain to see from the context
that the words were originally used to refer to those opponents of the Prophet
who, as the context implies, were bent upon maligning him, and who, despite the
manifest truth of the Prophet’s religious authority, had chosen a course
different from that of the Muslims.
Having found that the Qur’ānic basis for their thesis weak, the proponents of
ijmā‘ then turned to the sunnah for support, only to find that there was nothing
sufficiently concurrent (mutawātir) to offer conclusive evidence there either.
The next obvious step was to investigate the hadīth, most of which were in the
form of isolated narrations (akhbār ahād). These akhbār ahād, according to Sunni
principles of jurisprudence (usūl al-fiqh), were themselves probable (zannī) in
Quite obviously, probability, regardless of its degree, could not form the
epistemological foundation of certitude; therefore, the jurists came up with a
novel concept around the fourth/tenth and fifth/centuries: that of concurrence
of meaning (tawātur ma‘nawī), which they adduced as conclusive evidence based on
‘Āmidī (d.631/1233) gives an interesting example to explain this concept: we
might construe a man’s glances at a woman as indicative of his love for her with
only a slight degree of probability, but when there are other indicants, we
might gain enough knowledge to say with a reasonable degree of certainty that
the man is indeed in love with the woman.
In the same manner, we can gain certain and immediate knowledge on the basis of
a sufficient number of traditions, even if each of them may individually be
There are, however, a number of problems with this kind of argumentation.
Firstly, the basic problem in this epistemology is not the certainty with
respect to what the words in certain narrations mean but whether the words
themselves can be traced back to the Prophet (sws) with certitude.
Since the words of the narrations in question cannot themselves be traced back
to the Prophet (sws) with absolute certainty in Sunni epistemology, it would be
logically inconsistent to assert that certitude of meaning derived from
something that itself does not have epistemological certitude can lend certitude
to an entirely new concept, that is ijmā‘. In other words, the meaning itself
could only be traced back to the Prophet (sws) on the basis of tawātur if the
meaning too had been reified by the Prophet (sws) himself in the form of words
and had been passed on to the Muslim community by his immediate companions
through their established tawātur of transmission.
Therefore, in terms of logical consistency, the question is whether the most
important basis of Sunni ijtihād and interpretation, that is ijmā‘ – despite
having immense force of tradition – is essentially based on circular argument: a
very ingeniously constructed case of petitio principii.
Another argument is that tawātur itself actually depends on custom (‘ādah) and
that the companions of the Prophet (sws) would not have accepted so many ahādīth
pertaining to ijmā‘ if agreement on the tawātur of these ahādīth had not been
there right from the beginning.
Where did this tawātur vanish in history then? That, the argument holds, is not
pertinent to the reasoning as the question is merely a historical one.
There are three flaws in this argument. Firstly, even if the notion that the
companions accepted the ahādīth with which the later jurists justified ijmā‘ is
taken as fact, it does not negate the possibility that the companions accepted
them for what they were: akhbār ahād. It does not necessarily prove that they
granted them the status of mutawātirah in religion. Secondly, there is no
evidence to suggest that the companions were unanimous in their understanding of
the meanings of these akhbār in the same sense as has been given to these
narrations by the jurists. Even if it could be proved that the companions were
unanimous in their understanding, it does not prove that the same meaning was
afforded to these narratives by the Prophet himself. For that, the Prophet (sws)
would have used “words”, which then should have been transmitted by the tawātur
of the companions. Thirdly, it is impossible to imagine that a mutāwatir source
would just evaporate into thin air in the history of a continued tradition. Even
if forced eradication of such a source had taken place (for example by some
administrative decree), it would be inconceivable that an event of such import
would itself not have been reported by tawātur.
Apart from these major flaws in the
foundational argument of the certitude granted to ijmā‘, there are many other
inconsistencies in the whole Sunni construct as well as argumentation.
Much the same approach is reflected in the argumentation related to tawātur and
hadīth. Whereas tawātur in Sunni epistemology leads to absolute certitude (as in
the case of certain readings of the Qur’ān in Sunni concepts,
which tawātur is therefore termed as tawātur lafzī), the same could never be
said of the words reported in akhbār ahād.
Yet, the akhbār ahād are used at times to derive legal directives extraneous to
the Qur’ān itself.
To resolve this contradiction, the concept of ijmā‘ in interpretation and
ijtihād was proffered, which, as we already shown, is essentially based on what
it seeks to prove. Even though al-Asadabādī’s argument resolves the circularity
to the extent of the argumentation,
the issue of historical fallacy and other logical inconsistencies still remain
in the whole construct.
Therefore, though the construct did serve useful administrative function, the
infallibility afforded to it by its proponents had shaky foundations.
The reason for this discussion is, that
in stark contradiction to Sunni theory (which does not allow ijtihād in usūl or
matters already resolved by the ijmā‘ of Sunni schools), scholars, reformers,
and revivalists as Fazlur Rahman, Ghāmidī and Mawdūdī -- to name only a few –
have defied tradition in terms of new ijtihād both in usūl and in matters of
substantive law already resolved through ijmā‘. The reason is quite simple: ijmā‘,
as a form of human reasoning, never had the infallibility that the founding
fathers of this concept gave it. Many anomalies have been created by laws and
interpretations based on ijmā‘.
Similarly, many required changes are impeded by it.
Reformers in every age have shown great ingenuity and skill in finding their way
out of the labyrinth created by these problems by still holding on to the
concept of the authoritativeness of ijmā‘.
In other instances, the solutions were downright subterfuges – intentional or
Mawdūdī himself found a way out by accepting only a certain kind of ijmā‘ as
absolutely authoritative, which ijmā‘, by definition, is one that in most cases
of interpretation and ijtihād can rarely be established historically.
In many other cases, he relies on the principle of necessity (as we have seen in
Chapter 2) to overcome the obstacles to the realization of his weltanschauung
placed in his way by traditional interpretation. Ghāmidī, on the other hand,
goes to the extent of denying outright the infallibility of ijmā‘ on any
interpretation or any ijtihād, even if arrived at by the companions of the
To him, the only infallible source of religion is the Prophet (sws), who
disseminated it in the form of the Qur’ān and the sunnah.
It is only the ijmā‘ or tawātur of the companions in the transmission of these
sources that Ghāmidī considers as having an established (yaqīnī) basis in
In other words, since the Qur’ān and the sunnah were transmitted through tawātur,
Ghāmidī accepts them as the assured “content” of religion that requires human
As far as interpretation of this content and ijtihād on its basis are concerned,
they do not have the infallibility to be precluded from the scope of
investigation, critique, or repudiation.
This is a major epistemological break from the tradition, and its implications
are manifold as well as deep. Simply put, it means that, in Ghāmidī’s opinion,
there is nothing in the sharī’ah to prohibit any competent scholar from giving
opinions on matters and principles in interpretation or ijtihād already resolved
earlier through the mechanism of ‘ijmā‘.
1111), leaves no room for
doubt (lā yubqī fīhi rayb). Abū Hāmid al-Ghazālī), Al-Munqidh min al-Dalāl,
6-7, 11. Such certitude in religious guidance is often tantamount to an
addition to the sharī‘ah. Ironically, Ahmadīs were declared as non-Muslims
in Pakistan for accepting similar claims by Mirzā Ghulām Ahmad Qādiyānī, who
also declared himself a prophet of sorts. See Yohanan Friedmann, Prophecy
Continuous: Aspects of Ahmadī Thought and its Medieval Background (Berkeley:
University of California Press, 1989), 83-145. The Shi‘ite community also
grants certitude of religious knowledge to the ma‘sūm imāms. See Rahman,
Islam, 173-175. Throughout Muslim history—and even today—the concept of
such certitude -- whether through the Shi’ite concept of ma‘sūm imāms or the
Sunni concept of ijmā‘ -- has also been an important basis for the
legitimacy of claims to political, legal and social authority.
1024). See Hallaq, “On the Authoritativeness of Sunni